"8"

by
Dustin Lance Black
with researcher Kate Sullivan Gibbens
Based on the transcripts of Perry v. Schwarzenegger,
firsthand observations and collected interviews


8/21/2012
Hungry Jackal Productions
3727 W. Magnolia Blvd.
# 807
Burbank, CA 91505
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NOTE TO DIRECTORS:
In the trial there were plenty of tears
but many more laughs.
In this play there's little room for pauses.
It should run no longer than 84 minutes.
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In place of flashing the house lights, TV SCREENS
around the COURTROOM LIGHT UP signaling the play
is about to begin.
A TITLE CARD: EVIDENCE PX0099 -- then an
actual YES ON 8 AD featuring a FRIGHTENED
MOTHER and her DAUGHTER:
YES ON 8 AD
YOUNG GIRL: Mom, guess what I learned in school today? MOM: What sweety?
YOUNG GIRL: I learned how a prince married a prince, and I can marry a princess one
day. (MOM IS SHOCKED) ANNOUNCER: Think it can't happen? It's already happened.
When Massachusetts legalized gay marriage, schools began teaching second graders that
boys can marry boys. The courts ruled that parents have no right to object. (CLOSE ON:
THE FRIGHTENED MOTHER) WOMAN'S VOICE: Under California law, public
schools instruct kids about marriage. Teaching children about gay marriage will happen
here unless we pass Proposition 8. Yes on 8.
The TVs fade. ALL LIGHTS go down.
LIGHTS COME UP on teenage TWINS. ELLIOTT and
SPENCER, talking straight ahead as if in an
INTERVIEW.
SPENCER
Kris and Sandy, one night after work, had us sit down in the family room, which they
never do, so of course we knew something terrible was going to happen or something
really fun, so we sat down and Kris was like I was approached and asked if Id be a part
of this case. And I'm, Okay what case? And you know, It's to see whether or not
Proposition 8 is unconstitutional.
ELLIOTT
But I would have soccer practice and soccer games throughout the entire week, and then
also be playing club soccer, so it was basically, I would have to miss a lot of that.
SPENCER
And I'm a competitive fencer, so, you know... You associate the word activism with people
with signs and people who, not extremists, but when I think of Kris and Sandy I think of
people who, not humble, but people that don't want to force their views on people.
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ELLIOTT
I mean, we thought our parents WERE married, that's how they explained it to us. So when
we think of marriage, we think of Kris and Sandy. We think of our parents. But I know for
a fact that there are lots of kids in my school who don't want to see them as married.
SPENCER
So, What do we expect? I mean, I've never been in a courtroom where my parents are
testifying against their own government. I honestly cant tell you, because I think they
might be shattered with whats going to happen.
Lights come down on ELLIOTT and SPENCER.
Lights come up on the United States District Court for the
Northern District of California, a large courtroom. The
judges bench is elevated, upstage center, with a large seal
of the Federal District Court court above him. Stage left to
the bench is a witness stand, a court reporter sits to the
right. A podium faces the judge, upstage center. To the
left is a table for the defense, to the right a table for the
plaintiffs.
Space at the apron of the stage remains open for moments
occurring outside of the standard, analogous courtroom
proceedings.
CLERK
Calling Civil Case 09-2292, Kristin Perry, et al. versus Arnold Schwarzenegger, et al.
Appearances, counsel, please.
THE CAST (minus the plaintiffs and
their kids) all enter. As they find their
places, we hear the voice of a
BROADCAST JOURNALIST.
BROADCAST JOURNALIST (V.O.)
On Election Day 2008, Californians voted in favor of Proposition 8, thus rewriting the
California state constitution to add a ban on marriage for gay and lesbian citizens who were
already enjoying that right. Now, two lawyers most famous for representing the opposing
sides of Bush v. Gore have teamed up to take Proposition 8 to federal court.
MR. OLSON and MR. BOIES approach JUDGE
WALKER on the bench.
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MR. OLSON
Good morning, Your Honor. Theodore B. Olson on behalf of the plaintiffs.
JUDGE WALKER
Good morning.
MR. BOIES
Good morning, Your Honor. David Boies on behalf of the plaintiffs.
BROADCAST JOURNALIST (V.O.)
Chief Judge Vaughn Walker, a Republican appointee, agreed with Mr. Boies and Mr.
Olson that the case could be broadcast, but the defendants, the opponents of gay marriage,
turned to Charles Cooper.
MR. COOPER stands and addresses the bench.
MR. COOPER
Good Morning, Mr. Chief Judge. Charles Cooper for the defendant-intervenors.
BROADCAST JOURNALIST (V.O.)
Mr. Cooper filed an appeal with the US Supreme Court -- which was successful, and the
Supreme Court blocked plans to broadcast the trial. Thus, the nation was denied access to
the testimony of Plaintiffs Jeff Zarrillo and Paul Katami...
JEFF and PAUL enter downstage, and take their places in
the courtroom.
BROADCAST JOURNALIST (V.O.)
...and Sandy Stier and Kris Perry.
SANDY and KRIS enter downstage, but wait outside of
the courtroom.
BROADCAST JOURNALIST (V.O.)
But the transcripts of this trial could not be hidden. And on June 16th, 2010, the closing
arguments of this historic case commenced. These are the words, the witnesses, the
testimony and the trial that the defenders of Proposition 8 have fought so hard to keep from
public view.
The TWINS, ELLIOTT and SPENCER, enter downstage,
trapped by a CROWD and a GUARD.
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SPENCER
Mom! Mom!
KRIS motions to the GUARD. He lets them through.
KRIS
Did you get through security okay?
SPENCER
Obviously.
SANDY
So why didnt you come in with everyone else?
ELLIOTT
They took us in a back way. Around all the press.
SPENCER
Did you talk to any of the news cameras?
KRIS
Yes.
SPENCER
And?
Sandy recites her statement. Spencer mouths along.
SANDY
I just said, This case is about us as Americans wanting to be treated equally by our
government, and under the law. We are going into court today with that simple request.
SPENCER
You did it like that?
SANDY
Whats wrong with that?
ELLIOTT
I mean, you seem really nervous.
KRIS
Come on. Cell phones off. Lets find our seats.
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ELLIOTT
Wait. Will we be done in time for soccer practice?
KRIS
Im not sure. Now lets go.
ELLIOTT
What do you mean youre not sure?
SANDY
Who knew wed have to go through an actual trial, Elliott? So who knows what well have
to do today. Because, personally, Ive never sued Arnold Schwarzenegger before. Now
move it.
The TWINS walk away from their moms and into the
courtroom, SANDY and KRIS follow. They take their
seats near JEFF and PAUL.
JUDGE WALKER
Obviously, the hiatus that we've had is not anything that I would have hoped for. But it
may be appropriate that the case is coming to closing argument now. June is, after all, the
month for weddings.
Laughter in the courtroom
JUDGE WALKER (CONTD)
So I would simply propose that we get right to business. Mr. Olson, are you leading off
for the plaintiffs?
MR. OLSON
I am, Your Honor.
May it please the court. We conclude this trial, Your Honor, where we began. This
case is about marriage and equality.
The fundamental constitutional right to marry has been taken away from the plaintiffs
and tens of thousands of similarly-situated Californians. Their state has rewritten its
constitution in order to place them into a special disfavored category where their most
intimate personal relationships are not valid, not recognized, and second rate. Im going to,
with your permission, play some excerpts from the testimony of the plaintiffs.
Flashback to the trial.
Lights come up on KRIS who is now on the WITNESS
STAND and SANDY, JEFF and PAUL downstage.
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MR. OLSON questions them, their separate testimonies
now woven together.
CLERK
Raise your right hand, please.
THE PLAINTIFFS all raise their right hands.
CLERK (CONTD)
Do you swear to tell the truth, the whole truth and nothing but the truth?
JEFFREY, PAUL, KRIS & SANDY
I do.
MR. OLSON
Would you tell us briefly about your background?
KRIS
I was born in Illinois, but my parents moved here with me when I was two years old.
SANDY
Well, I -- I grew up on a farm in southern Iowa. Going to public schools.
KRIS
I am the executive director of a state-wide agency that provides services and support to
families with children zero to five.
MR. OLSON
Now, today you are in a committed relationship with another gay man, correct?
PAUL
I have found someone that I know I can dedicate the rest of my life to. And when you find
someone who is not only your best friend but your best advocate and supporter in life, it's a
natural next step for me to want to be married to that person.
JEFFREY
March will be nine years.
KRIS
Sandy and I live together in Berkeley with our children.
SANDY
We each bring two biological children to our family and each other. Our two younger sons
are in high school.
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KRIS
I remember the first time I met Sandy thinking she was maybe the sparkliest person I ever
met. And our friendship became deeper and deeper over time. And then after a few years, I
began to feel that I might be falling in love with her.
MR. OLSON
And how did she feel about you?
KRIS
She told me she loved me, too.
MR. OLSON
We will be asking her to verify that.
KRIS
(smiles)
Okay.
Laughter in the courtroom.
JEFFREY
It's always an awkward situation at the front desk at the hotel. The individual working at
the desk will look at us perplexed, "You ordered a king-size bed. Is that really what you
want?" It was certainly an awkward situation walking to the bank and saying, "My partner
and I want to open a joint bank account," and hearing, you know, "A business account?--
PAUL
--An LLC or an S Corporation? No, not my business partner. My partner." Being able
to call him my husband is so definitive. It's something that everyone understands.
KRIS
I'm a 45-year-old woman. I have been in love with a woman for 10 years and I don't have a
word to tell anybody about that.
JEFFREY
The word "marriage" has a meaning. If it wasn't so important, we wouldn't be here today.
KRIS
It symbolizes maybe the most important decision you make as an adult, who you choose.
PAUL
Unless you have to go through that constant validation of self, there's no way to really
describe how it feels. I love Jeff more than myself.
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And being excluded in that way is so incredibly harmful to me. I can't speak as an expert. I
can speak as a human being that's lived it.
Lights come down. Darkness.
TV SCREENS in the courtroom LIGHT UP again. This
time its titled EVIDENCE PX0015 -- an AD featuring
documentary shots of a TERRIFIED LITTLE GIRL.
YES ON 8 AD 2
WOMAN'S VOICE: Opponents of Prop 8 say gay marriage has nothing to do with
schools. Then a public school took first graders to a lesbian wedding calling it a teachable
moment. Now this politician says schools aren't required to teach about marriage, yet his
official website confirms teaching marriage is required in 96 percent of schools and a
leading Prop 8 opponent has warned parents cannot remove children from this instruction.
Unless we vote Yes on Proposition 8 children will be taught about gay marriage. GAVIN
NEWSOM: Whether you like it or not.
Lights come back up on the CLOSING ARGUMENTS.
MR. OLSON
Your Honor, the words they put into the hands of all California voters, focused heavily on:
protect our children. Protect our children from somehow learning that gay marriage is
okay.
For obvious reasons, the "gays are not okay" message was largely abandoned during
the trial in favor of procreation and deinstitutionalization themes.
And I submit that the overwhelming evidence in this case proves that allowing
persons to marry someone of the same-sex will not, in the slightest, deter heterosexuals
from marrying or from having babies.
If we had the time, Your Honor, I could not present a more compelling closing
argument than simply replaying the testimony in its entirety of the four plaintiffs.
But we have so much more. There were eight experts, persons who have studied and
written about American history, marriage, psychology, sociology, economics and political
science.
Professor Cott, for example. An expert in marriage.
Lights come up on DR. NANCY COTT in the witness
stand. MR. BOIES questions her.
DR. COTT
Marriage, the ability to marry, to say, "I do," it is a basic civil right. It expresses the right of
a person to have the liberty to consent validly.
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And this can be seen very strikingly in American history through the fact that slaves lacked
that very basic liberty of person to say, "I do," with the force that "I do" has to have.
MR. BOIES
What happened when slaves were emancipated?
DR. COTT
When slaves were emancipated, they flocked to get married. It was said by an ex-slave
who had also been a Union soldier, "The marriage covenant is the foundation of all our
rights." Meaning that it was the most everyday exhibit of the fact that he was a free person.
MR. BOIES
No further questions, Your Honor.
JUDGE WALKER
Mr. Cooper, you may cross-examine.
MR. BOIES sits as MR. COOPER approaches the
witness.
MR. COOPER
In the nineteenth century many Americans engaged in informal marriages, correct?
DR. COTT
That is true.
MR. COOPER
And pregnancy or child birth was the signal for a couple to consider themselves married,
correct?
DR. COTT
Not always. Sometimes.
MR. COOPER
Well, let's look at Public Vows, your book, which has been admitted. Page 31.
DR. COTT
Page 31, you said?
She finds the page.
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MR. COOPER
It reads in part: "Marriage frequently followed upon a sexual relationship between a man
and a woman proving fruitful, rather than preceding it: Pregnancy or child birth was the
signal for a couple to consider themselves married." You believed that when you wrote
these words, didn't you?
DR. COTT
Well, as I said, frequently, yes, not always.
MR. COOPER
And you provided a statement to the Vermont legislature when it was considering same-
sex marriage?
DR. COTT
Not to the legislature. To their joint judiciary committee.
MR. COOPER
I see. When you provided that statement in Vermont, the law that resulted was a
compromise which gave something to the Catholics and other conservative groups and
something to the LGBT community, correct?
DR. COTT
(regretting her past words)
It did state in its first line, "Marriage is between a man and a woman." -- And then it went
on to grant a civil union arrangement that gave all the rights and benefits to same-sex
couples... Yes.
MR. COOPER
Your Honor, we have no further questions. Thank you, Professor.
Lights come down on the witness chair and up on JEFF
and PAUL both standing, giving TESTIMONY.
JEFFREY
A civil union? A domestic partnership would relegate me to a level of second class
citizenship, maybe even third class citizenship. It doesn't give due respect to the
relationship that we have had for almost nine years. Only a marriage could do that.
PAUL
"Husband" is definitive. It's something that everyone understands. There is no subtlety to
it. It is absolute, and comes with an understanding that your relationship is not temporal, it's
not new, it's not something that could fade easily.
We would love to have a family, but the timeline for us has always been marriage
first, because it solidifies the relationship. And we gain access to that language that is
global, where it won't affect our children in the future.
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They won't have to say, "My dad and dad are domestic partners." Because not everyone
knows what a domestic partnership is. We want our children to be protected from any
awkwardness like that. We want to focus on RAISING our kids.
Lights come down on JEFF and PAUL and up on DR.
MEYER in the witness chair.
DR. MEYER
I think its quite clear that the young children do not aspire to be domestic partners. For
young people, and certainly for people later on, marriage is a desirable and respected type
of goal that if you attain it, it's something that gives you pride and respect.
MR. BOIES approaches the witness.
MR. BOIES
Dr. Meyer, as one of the world's leading experts on stigma and discrimination, do you have
an opinion as to whether domestic partnerships enjoy similar symbolic and social meaning?
DR. MEYER
In my mind, Proposition 8, in its social meaning, sends a message that gay relationships are
not to be respected; that they are of secondary value, if of any value at all; that they are
certainly not equal to those of heterosexuals. And, to me, that's -- in addition to not
allowing gay people to marry, it also sends a strong message about the values of the state;
in this case, the Constitution itself.
MR. BOIES sits. MR. COOPER approaches DR.
MEYER on the witness stand.
MR. COOPER
Are you aware that same-sex marriage has been legal since 2004 in Massachusetts?
DR. MEYER
Yes.
MR. COOPER
Do LGB individuals suffer from a lower prevalence of mental health disorders in
Massachusetts than in California?
DR. MEYER
(struggles)
Well, the first answer is -- I don't really know, but that's not how I -- I wouldn't expect it
exactly in that way that you are suggesting;
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that that would be the test of that, because Massachusetts is not -- an isolate in the United
States. And, certainly, I would think that people in Massachusetts who are gay would feel
more supported and welcome.
MR. COOPER
But your answer is, You don't know, correct?
DR. MEYER
Well, I don't -- I don't have the data on that.
MR. COOPER
You don't have data?
DR. MEYER
Right.
MR. COOPER
Okay. Do LGB individuals suffer from a lower prevalence of mood, anxiety and substance
use problems in Massachusetts than in California?
DR. MEYER
Again, I don't know of a study that compared California to Massachusetts on any of those
outcomes.
MR. COOPER
Okay. And I was planning to ask you about the other outcomes, but the answer would be
the same?
DR. MEYER
Right.
MR. COOPER
No further questions, Your Honor.
Lights come down on trial and up on the apron.
MAGGIE GALLAGHER appears Downstage Right.
Downstage Left is EVAN WOLFSON. Both face
forward; they are talking heads on a TV NEWS SHOW.
The BROADCAST JOURNALIST moderates.
BROADCAST JOURNALIST
With us today from New York and Virginia we have Evan Wolfson whose work is
focused on winning marriage equality, and Maggie Gallagher who is President of the
National Organization for Marriage. Now Ms. Gallagher, is it correct that you believe--
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MAGGIE
(already irritated)
Here's the bottom line. Not only do the majority of people, but the majority of courts have
recognized that gay marriage is not a civil right. The majority of people believe it's a civil
wrong. Same-sex unions are not marriages, you have the right to live as you choose, you
may even need some benefits and protections--
EVAN
May even?
MAGGIE
--but you don't have the right to redefine marriage.
EVAN
Yeah, but see, we're not redefining marriage, were --
MAGGIE
You are, Evan! You have to be in reality--
EVAN
Please don't interrupt... Please dont
interrupt... I didnt interrupt you.
MAGGIE
For the majority of Americans... For a...
majority of Americans youre redefining--
EVAN
The same groups that funnel their money through Maggie Gallaghers organization are
opposed to partnerships and civil unions and every other level of respect--
BROADCAST JOURNALIST
Maggie, is that true, you oppose civil unions as well?
MAGGIE
The National Organization for Marriage doesn't take a direct issue on civil unions although
we would if--
BROADCAST JOURNALIST
So if there were a ballot issue that said gays can have civil unions would you back off and
stay out--
MAGGIE
Let me just say, our focus is on the marriage issue and on the religious liberty
consequences of other kinds of benefits and protections --
EVAN
Right! And what I said was the same funders who are funneling their money through this
organization, are opposed to partnership or every other measure of respect, and--
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MAGGIE
Evan, the National Organization of--
EVAN
May I finish?
MAGGIE
I have fought on the marriage issue for 25 years because I believe the ideal for a child is a
married mother and father. Marriage is not a relationship invented by the government,
marriage is a social institution, with deep roots in nature--
EVAN
Listen, Mrs. Gallagher, you're entitled to believe whatever you want. What I said is that the
funders who funnel their money through--
MAGGIE
You dont... you dont... Its not true--
EVAN
Please stop interrupting. Please--
EVAN
You're under investigations in three states and you know that.
MAGGIE
We obey the laws of this country.
EVAN
Then why are you under investigation for flouting those laws?
Lights come down on the apron and back up on
CLOSING ARGUMENTS. The order of the courtroom
stands in stark contrast to the uncivil discourse outside.
MR. OLSON addresses the judge.
MR. OLSON
Your Honor, the plaintiffs are in the same position as Mildred Jeter and Richard Loving,
who in 1967 had no interest in diluting the institution of marriage. They only wanted to
marry the person they loved, the person of their choice, who happened to be a person of a
different race.
That's all the plaintiffs desire, the right to marry the person they love, the person of
their choice, who happens to be of the same sex.
JUDGE WALKER
Well, now, the Supreme Court decided that the issue which we are confronted with here
was not ripe for the Supreme Court to weigh in on. That was 1972. What's happened in the
38 years since 1972?
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MR. OLSON
The Supreme Court in Lawrence vs. Texas reversed Bowers vs. Hardwick with a 6-to-3
decision. And the majority of the opinion, Justice Kennedy and four other justices,
decided that case on the basis of due process.
JUDGE WALKER
The statute in Lawrence was a criminal statute.
MR. OLSON
Yes.
JUDGE WALKER
The denial of the right to marriage of same-sex couples doesn't have any criminal sanction.
MR. OLSON
I submit it doesn't make any difference.
Our fundamental rights can't be taken away unless the state has a very, very
fundamental, strong, compelling reason to do so, and it acts with surgical precision so that
it takes no more than the compelling reason justifies.
We are talking about a group of individuals who meet every one of the standards for
suspect classification. They are a minority. There wasn't any dispute about that. It's an
immutable characteristic. The witnesses said that.
Lights come up on RYAN KENDALL in the witness
stand. MR. BOIES questions him.
RYAN KENDALL
I was a precocious kid. So one day I ended up looking up the word "homosexual" in the
dictionary. And it slowly dawned on me that that's what I was.
MR. BOIES
Given your prior testimony about homosexuals, how did you feel when you realized that
you were gay?
RYAN KENDALL
Well, once I realized what a homosexual was, I was scared by that. I realized this was bad
news for me. So I hid it as far away from everyone as I could.
MR. BOIES
Around this time, did anyone talk to you about being gay?
RYAN KENDALL
When I was in seventh grade I remember being taunted about being gay. I was called a
faggot. I was called a homo, a queer. It was scary going into that building realizing these
kids were taunting me with a word that was so close to the truth. I would go home crying.
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MR. BOIES
Did your parents ever find out that you were gay?
RYAN KENDALL
When I was 13 years old my parents discovered my journal. And for the first time I had
admitted to myself that I was gay. And I had actually written those words. And they found
that and read it.
MR. BOIES
What happened when they found that journal?
RYAN KENDALL
They were very upset. They were yelling. I remember my mother looking at me and telling
me that I was going to burn in hell. It was shocking. I never heard anything like that from
my mother. I mean, you don't get much worse than eternal damnation.
MR. BOIES
And what's NARTH?
RYAN KENDALL
NARTH stands for the National Association for Reparative Therapy of Homosexuality. It's
a reversal therapy organization based in Encino, California.
MR. BOIES
How long were you at NARTH? From what ages?
RYAN KENDALL
14 to 16.
MR. BOIES
During the time that you were at NARTH, how was your home life?
RYAN KENDALL
Uhm, my mother would tell me that she hated me. Once she told me that she wished she
had had an abortion instead of a gay son. She told me that she wished I had been born with
Downs Syndrome or I had been mentally retarded.
MR. BOIES
Who did you meet with at NARTH?
RYAN KENDALL
I met with Dr. Joseph Nicolosi.
MR. BOIES
Where would you meet with Mr. Nicolosi?
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RYAN KENDALL
I did actually fly out to California to do in-person sessions. I recall Nicolosi saying that,
you know, "Homosexuality is incompatible with what God wants for you, and your
parents want you to change," and that this is a bad thing.
MR. BOIES
Were you given any advice on how you would be able to suppress your homosexuality in
these therapy sessions?
RYAN KENDALL
I remember it as a general admonishment, but not a specific technique, no.
MR. BOIES
No further questions, Your Honor.
MR. BOIES sits.
JUDGE WALKER
Mr. Cooper, you may cross-examine.
MR. COOPER approaches the witness.
MR. COOPER
Mr. Kendall, have you ever lived in the State of California?
RYAN KENDALL
No, I have not.
MR. COOPER
You have never read a scientific study addressing the concept of sexual orientation; isn't
that true?
RYAN KENDALL
That is true.
MR. COOPER
And isn't it also true that you have never studied whether a person's sexual orientation can
change throughout the course of his or her lifetime?
RYAN KENDALL
No, I haven't studied it.
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MR. COOPER
And nothing involved in conversion therapy was your decision; it was all your parents'
decision. Isn't that true?
RYAN KENDALL
Yes.
MR. COOPER
At some point you communicated to your parents objections to the counseling treatment.
But your parents compelled you to go against your will?
RYAN KENDALL
Thats correct.
MR. COOPER
Your only goal for conversion therapy was to survive the experience; isn't that true?
RYAN KENDALL
Absolutely true.
MR. COOPER
You didn't have the goal of changing your sexual orientation -- I'm sorry, correction. You
didn't have the goal of changing your sexual attraction, correct?
RYAN KENDALL
Thats correct.
MR. COOPER
Indeed, you admit that you did not truly want to reduce your sexual attraction to persons of
the same sex; isn't that true?
RYAN KENDALL
That's correct. It is my experience that people don't want to go to programs like NARTH.
MR. COOPER
Well, you acknowledged in your deposition, did you not, that some people report to have
effective results with conversion therapy; isn't that true?
RYAN KENDALL
Yes.
MR. COOPER
I have no further questions, Your Honor.
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MR. COOPER sits. MR. BOIES re-approaches RYAN
KENDALL.
MR. BOIES
And was this therapy successful in that you were able to suppress your homosexuality?
RYAN KENDALL
No. I was just as gay as when I started.
MR. BOIES
While you were in conversion therapy, were you introduced to any people who purported --
or were purported to you to have successfully undergone conversion therapy?
RYAN KENDALL
I remember during one of the group therapy sessions Nicolosi trotted out his perfect
patient, the guy who had been cured of his homosexuality. And his name was Kelly.
MR. BOIES
Did meeting Kelly have any impact on your views of conversion therapy?
RYAN KENDALL
I remember once, when Nicolosi stepped out of the room, we were talking amongst
ourselves. And Kelly told me that later that night he was going to a gay bar, and that he
was just pretending to be cured for the sake of his family.
MR. BOIES
Why did you stop going to reversal therapy?
RYAN KENDALL
During this whole thing, my life had kind of fallen apart. I didn't have the world that I grew
up in; my faith, which was very important to me; my family, which was even more
important. Everything had just kind of stopped. And I just couldn't take anymore. And I
realized, at one point, that if I didn't stop going I wasn't going to survive.
MR. BOIES
What do you mean by that?
RYAN KENDALL
Uhm, I would have probably killed myself.
Lights come down on RYAN and back up on Closing
Arguments.
MR. COOPER charges the bench, unwilling to lose on
this point.
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MR. COOPER
Your Honor. Our submission, obviously, is that sexual orientation is not an immutable
trait, that is, an accident of -- an accident of birth, which --
JUDGE WALKER
What do you mean it's an accident of birth?
MR. COOPER
Accident of birth in the sense that that term has been used consistently by the Supreme
Court to identify the kinds of immutable characteristics that -- that go into the calculus on
whether heightened scrutiny should apply.
The Ninth Circuit said, unequivocally, "Sexual orientation is not an immutable
characteristic." That's a quote.
But perhaps the most vivid evidence was an APA study which indicated that over a
10-year period, for women who identified themselves as homosexuals, some two-thirds of
them had experienced a change in their sexual orientation at least once over the course of
their lifetime.
The lights shift to TESTIMONY. SANDY is up on the
witness stand.
SANDY
I had a hard time relating to the concept of being in love when I was married to my
husband. I honestly just couldn't relate when people said they were in love. I thought they
were overstating their feelings. It seemed dramatic.
When you grow up in the mid-west and in a farming family, there is a pragmatism
that is part of the fabric of life. And I remember as a young girl talking to my mom about
love and marriage and she would say, "You know, marriage is more than romantic love.
It's more than excitement. It's hard work. And in my family that seemed very true.
(smiles at her own joke)
So I thought that was what I was signing up for when I got married to him; not that it
would be bad, but that it would be hard work.
When I first met Kris, I was teaching a computer class and she was a student. But
then we ended up being friends and I began to realize that the feelings I had for her were
really unique. And they were absolutely taking over my thoughts and my entire self. And I
grew to realize I had a very strong attraction to her and I was falling in LOVE with her. --
And not only were we in love, but we wanted to join our families and have that kind of life
of commitment and stability that we both really appreciated.
MR. OLSON
How convinced are you that you are gay? You've lived with a husband. You said you
loved him. Some people might say, well, it's this and then it's that and it could be this again.
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SANDY
I'm convinced, because at 47 years old I have fallen in love one time -- and it's with Kris.
Without missing a beat, new lights come up on PAUL,
KRIS, and JEFFREY in various places in the courtroom,
individually lit, their right hands all raised.
PAUL
I have been gay as long as I can remember.
JEFFREY
I have no attraction, desire, to be with a member of the opposite sex.
KRIS
I have always felt strong attraction and interest in women and I have only ever fallen in
love with women. I'm 45 years old. I don't think I am anything other than gay.
A new pool of light for DR. HEREK, who is downstage
left, his right hand raised. A proclamation:
DR. HEREK
The American Psychiatric Association, the American Psychological Association, the major
professional mental health associations have all gone on record affirming that
homosexuality is a normal expression of sexuality.
As DR. HEREK opens his thick DIAGNOSTIC
MANUAL, a quick chorus:
KRIS
Finding of fact #46:
SANDY
Finding of fact # 46:
DR. HEREK reads from his MANUAL.
DR. HEREK
Individuals do not generally choose their sexual orientation.--
PAUL
--No credible evidence supports a finding that an individual may--
JEFFREY
--through conscious decision, therapeutic intervention,--
SANDY
--or any other method, change his or her sexual orientation.
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Lights come down on PAUL, JEFF, KRIS and SANDY,
but remain up on DR. HEREK.
MR. BOIES approaches DR. HEREK.
MR. BOIES
Professor Herek, can you please describe your educational background?
DR. HEREK
Yes. I received my doctorate in social psychology. My dissertation focused on
heterosexuals attitudes towards lesbians and gay men.
MR. BOIES
Is homosexuality considered a mental disorder?
DR. HEREK
No. There were empirical studies that had been conducted that had failed to support the
view of homosexuality as a mental illness.
MR. BOIES
Look at the study "The Definition and Scope of Sexual Orientation." It says: "We suggest
the term sexual preference is misleading, as it assumes conscious or deliberate choice. We
recommend the term sexual orientation because findings indicate that homosexual feelings
are a basic part of an individual's psyche and are established much earlier than conscious
choice would indicate." Do you agree with that?
DR. HEREK
Yes. Yes, I do.
Lights come down on the witness stand and back up on
the closing arguments.
JUDGE WALKER
But these immutability characteristics, they really are not the important factor, are they, in
deciding what the level of scrutiny is?
MR. COOPER
Well, Your Honor, yes. With respect, it is a critical -- it is a critical element. But it isn't -- it
isn't more or different -- differently critical than, say, political power.
And, Your Honor, under the Supreme Court's test for political powerlessness, we
would submit to you, again, that the evidence is overwhelming that gays and lesbians are
not politically powerless...
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(uncomfortable)
...notwithstanding Dr. Segura's testimony--
Lights come up on DR. SEGURA in the witness chair.
MR. OLSON approaches.
MR. OLSON
Dr. Segura, how have ballot initiatives in this country affected the rights of gay men and
lesbians in terms of political power?
DR. SEGURA
For starters, and I would include in this undocumented aliens who are a distant second,
there is no group who has been targeted by ballot initiatives more than gays and lesbians.
The number of ballot initiative contests since the late 1970's is probably at or above 200.
Gays and lesbians lose 70 percent of the contests and a hundred percent of the contests
over same-sex marriage and adoption.
MR. OLSON
Are gays and lesbians underrepresented in political office in the United States?
DR. SEGURA
At last count only six people have ever served in the House of Representatives who have
been openly gay and only two of those were elected as openly gay. There has never been
an openly gay Senator or cabinet member or certainly President. And only about one
percent of the states legislators are gay.
MR. OLSON
So how does the lack of participation or representation in government positions undermine
political power of gay men and lesbians?
DR. SEGURA
There are members of the United States Senate who, in public speeches, have compared
same-sex marriage to marrying a box turtle. Senator Coburn has gone on record saying
that the gay and lesbian agenda is the greatest threat to freedom in the United States today.
And a Senator from South Carolina said that gays and lesbians shouldn't be allowed to
teach in the public schools. It's difficult to imagine an elected official saying such a thing
about, really, almost any other citizen group. That's not the fringe. That's a United States
Senator. And as a consequence, it legitimizes some of these deeply hostile beliefs.
The lights come down on trial and up on KRIS, standing,
delivering TESTIMONY.
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KRIS
I don't want to draw people's criticism. In fact, quite the opposite. I would really like people
to like me. So since I know I have this trait that I can't change that people don't like, I go to
great lengths to have other traits people do like. So I put a significant amount of time and
energy into being likable so that when discriminatory things happen, I can turn it around.
The decision every day to come out or not, at work, at home, at PTA, at music, at
soccer, is exhausting. If, for example, we are in a store, people want to know if we are
sisters or cousins or friends, and I have to decide every day if I want to come out
everywhere I go and take the chance that somebody will have a hostile reaction, or just go
there and buy the microwave we went there to buy without having to go through that again.
The lights come down on KRIS and back up on the full
courtroom.
A suddenly skeptical JUDGE WALKER addresses MR.
COOPER directly.
JUDGE WALKER
Let me throw in a question here. Assume I agree with you that the state's interest in
marriage is essentially procreative. How does permitting same-sex marriages impair or
adversely affect that interest?
MR. COOPER
Your Honor, that gets to the fundamental disagreement here. They say that it's not enough
for opposite-sex unions to further and advance these vital state interests; that we have to
prove that including same-sex unions into the definition of marriage would actually harm
those interests. That is not the equal protection construct--
JUDGE WALKER
Im asking you to tell me how it would harm opposite-sex marriages.
MR. COOPER
All right.
JUDGE WALKER
All right. Lets play on the same playing field for once, okay?
MR. COOPER
Your Honor... my answer is:
(a long pause)
I dont know... I dont know.
The air goes out of the room.
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JUDGE WALKER
Does that mean -- does that mean if this is not determined to be subject to rational basis
review... you lose?
MR. COOPER
(a beat, then)
No, your Honor.
JUDGE WALKER
Just havent figured out how youre going to win on that basis yet?
MR. COOPER
(reeling)
Your Honor, by saying that the state and its electorate are entitled, when dealing with
radical proposals for change, to move with caution... keep in mind, this same-sex marriage
is a very recent innovation, its implications of a social and cultural nature, not to mention its
impact on marriage over time can't possibly be known!
JUDGE WALKER
So this is a political question, and the Court should abstain? Is that it?
A beat of silence -- MR. COOPER turns out to the
audience, more than a little lost.
The TVs in the courtroom turn on again. A TITLE CARD:
EVIDENCE PX0016 -- then another YES ON PROP 8
COMMERCIAL plays:
YES ON 8 AD 3
WOMAN'S VOICE: Same-sex marriage. Have you really thought about it? MAN: What
it means when gay marriage conflicts with our religious freedoms. MAN2: Why it was
forced on us by San Francisco judges when gay domestic partners already have the same
legal rights. WOMAN: What it means when our children are taught about it in school.
WOMAN'S VOICE: Have you thought about what same-sex marriage means
VULNERABLE CHILD: to me? WOMAN'S VOICE: Think about it. Voting yes restores
traditional marriage. Yes on Proposition 8.
As the TVs fade, lights come up on PAUL delivering
more TESTIMONY.
PAUL
I was in traffic in Los Angeles, and that's like having coffee with someone in the car next to
you. You deal with sitting next to this person over and over again for miles.
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And I noticed that this person had a Yes on 8 campaign sticker on their bumper.
And I thought, "I want to see who this person is." And I pulled up, and I looked
over. And I got a very distinctive "What?" look back. And I said, "I just disagree with your
bumper sticker."
She said, "Well, marriage is not for you people, anyway." And I thought, "God, do I
have a gay flag on my car?" Like, "How does she even know that I'm gay?" And I
normally think that I'm pretty good at being able to come back with, you know, something
to support myself. But I was in shock.
And I remember it was a yellow bumper sticker, and it had an image that looked like
a parent and a child, connected, because Protect the Children was a big part of their
campaign. But when I think of protecting your children, you protect them from people who
will perpetrate crimes against them. You protect yourself from things that can harm you
physically, emotionally. And the insinuation that I would be part of that category, that my
getting married to Jeff is going to harm some child somewhere -- it's so damning, and it's
so angering, because if you put my nieces and nephews on the stand right now, I'd be the
cool uncle. And to think that you had to protect someone from ME, from JEFF, from our
friends and from our community, there's no recovering from that. And unless you've
experienced that moment, regardless of how proud you are, you feel ashamed. It rocks
your world.
Lights come down on PAUL and back up on the closing
arguments. MR. OLSON approaches the bench to wrap
up his initial arguments.
MR. OLSON
I'm willing to acknowledge that there are plenty of good Californians that voted for
Proposition 8 because they are uncomfortable with gay people. They are uncomfortable
with gay people entering into marriage, and they are uncomfortable with the very idea that
gay people are just like us.
But they didn't hear, and too bad they couldn't have seen the evidence in this trial.
The Supreme Court has said that: Marriage is the most important relation in life. It is
the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of
privacy older than the Bill of Rights and older than our political parties. A right of intimacy
to the degree of being sacred.
There are 14 Supreme Court decisions that talk about the right to marriage and the
testimony of all of these expert witnesses and the testimony of the plaintiffs. That erects an
insurmountable barrier to the proponents of this proposition.
It will not hurt Californians. It will benefit Californians. But as long as it doesn't hurt
Californians to get rid of harmful stigma in their constitution that's labeling people into
classes, then it's unconstitutional.
Thank you, Your Honor.
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JUDGE WALKER
Very well. Thank you, Mr. Olson. Mr. Cooper, you are up at 1:00 and I look forward to
hearing from you at that time.
Lights come up on MAGGIE GALLAGHER, again
downstage, but now shouting over the SOUNDS OF
PROTESTERS at the PRESS.
MAGGIE
It is not discrimination. It is not discrimination to treat different things differently.
I have a message for our good friends who don't agree with us. The fifty-two
percent of Californians who came together across lines of race and creed and color to
protect marriage as the union of husband and wife are not haters.
There is rather powerful evidence that human beings are a two-sex species, designed
for sexual rather than asexual reproduction. If this is true, then the absence of desire for the
opposite sex represents, at a minimum, a sexual dysfunction--
MAGGIE continues, but we dont hear her.
Without skipping a beat we hear KRIS, SANDY,
ELLIOTT and SPENCER, Downstage Left, at lunch.
KRIS
Spencer, arent you hungry?
SPENCER
Not really.
ELLIOTT
I cant miss practice again and still start on Friday.
SPENCER
And I have a test. Three tests.
ELLIOTT
How long do we have to be here?
Alternating back and forth without pauses, we again hear
MAGGIE.
MAGGIE (CONTD)
At its deepest level, this thing called marriage stands for the reality that our bodies have
meaning. That its not an accident that we are born male and female. That the deepest
yearnings of our hearts and even our bodies have a purpose.
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A baby, as you know, is God's opinion that the world should go on. It is not a creature
of government. Something invented and reinvented for the latest fad --
Back to our FAMILY.
ELLIOTT
But, I mean, they arent really doing anything in there. Im just kind of like uuuhhhh.
Okay. Who cares?
SPENCER
I thought it was interesting personally. But their side, theyre just very--
ELLIOTT
--Sub-par, Spencer.
SPENCER
Sub-par, that's the perfect word for it, Elliott.
ELLIOTT
And its nothing we dont know already, so why are we here?!
Back to MAGGIE.
MAGGIE (CONTD)
What are activist judges proposing to do? To redefine what the word husband means. To
redefine what the word wife means. To redefine what the word parent means. So that it
no longer has these deep roots in the natural order.
Back to our FAMILY as they step CENTER, within
earshot of MAGGIE.
KRIS
Hey, well get tapas at Fondas on our way home. How about that?
ELLIOTT
Whatever. Well just order takeout and walk home.
SANDY
Your moms. Its a special kind of torture to be, like, at a restaurant with your moms.
Right?
SPENCER
Its not that bad. I think youre interesting, Sandy.
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SANDY
Just one more night then and well be back to normal--
KRIS
--and youll be really, really bored again. I promise.
Back to MAGGIE.
MAGGIE
So what is this thing called same-sex marriage? Ill tell you what. It amounts to a vast...
social... experiment -- on children. And rewriting the basic rules of marriage puts all
children, not just the children in unisex unions, at risk. And thats the real truth, thank-you-
very-much.
MAGGIE storms into the courtroom. KRIS, SANDY,
ELLIOTT and SPENCER follow. They all sit, almost as
one, just across the aisle from one another.
MR. COOPER rises from the defense table.
JUDGE WALKER
Mr. Cooper, good afternoon.
MR. COOPER
Good afternoon, Your Honor.
The New York Court of Appeals observed in 2006 that until quite recently it was an
accepted truth for almost everyone who ever lived in any society in which marriage existed
that there could be marriages only between participants of different sex.
So the first question is: Why has marriage been so universally defined by virtually all
societies at all times as an exclusively opposite-sex institution? It is because marriage
serves a societal purpose that is fundamental to the very existence and survival of the
human race.
And the historical record leaves no doubt that the central purpose of marriage is to
channel potentially procreative sexual relationships into enduring stable unions to
increase the likelihood that any offspring will be raised by the man and woman who
brought them into the world.
Mr. Olson often quotes the Supreme Court's statement that, "Marriage creates the
most important relation in life." That case explained why the institution of marriage is
uniquely imbued with the public interest --
JUDGE WALKER
Do people get married to benefit the community?
MR. COOPER
Your Honor?
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JUDGE WALKER
When one enters into a marriage, you don't say, Oh, boy, I'm going to be able to benefit
society by getting married. What you think of is, I'm going to get a life partner --
MR. COOPER
Yes, Your Honor.
JUDGE WALKER
-- Somebody that I can share my life with, maybe have children, but all sorts of things
come out of a marriage.
MR. COOPER
But if you --
JUDGE WALKER
But is the purpose of marriage for individuals to benefit society?
MR. COOPER
It may well be that individuals who get married aren't doing it in order to benefit the
community, although that is the ultimate result of it. But the question has to be: Well, why
does the government regulate this relationship? Why is it --
JUDGE WALKER
That's a good question. Why doesn't it leave it entirely up to private contract?
MR. COOPER
It's because this relationship is crucial to the public interest because, Your Honor, the
procreative sexual relation is an enormous benefit to society and it represents a very real
threat to society's interests.
JUDGE WALKER
A threat?
MR. COOPER
A threat in the sense that to whatever extent children are born into the world without this
stable, union and raised by both of the parents that brought them into the world, then
a host of very negative social implications arise.
JUDGE WALKER
But the state doesnt withhold the right to marriage to people who are unable to produce
children of their own. Are you suggesting that the state should?
MR. COOPER
No, sir, Your Honor. It is by no means a necessary -- a necessary condition or a necessary
requirement --
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JUDGE WALKER
Well, then, the state must have some interest wholly apart from procreation.
MR. COOPER
Your Honor, it isn't a necessary requirement that the state actually insist that individuals
who get married have children or be able to have children.
How would it go about administering such a requirement? It would have to have
premarital fertility testing. Some kind of pledge in which the couple, found to be fertile,
also pledged to actually have children.
Your Honor. Those kinds of Orwellian... Orwellian tactics --
JUDGE WALKER
It is Orwellian. But isn't that the logic that flows from the premise that marriage is about
procreation?
MR. COOPER
It is enough if the state seeks to attempt to increase the likelihood that naturally
procreative sexual relationships will take place in an enduring and stable family
environment -- for the sake of the children.
JUDGE WALKER
Isnt the state indifferent with respect to how the child was conceived?
MR. COOPER
The state and every state and every society for the millennia, Your Honor, has attempted to
channel naturally procreative sexual conduct between men and women into an enduring
stable, union for the sake of --
JUDGE WALKER
Lets move on from the millennia to the three weeks in January when we had the trial.
What does the evidence show?
MR. COOPER
Thank you, Your Honor.
I believe the evidence shows overwhelmingly that this interest in what many call, and
the United States Congress calls, responsible procreation is really at the heart of society's
interest in regulating marriage.
JUDGE WALKER
Okay --
MR. COOPER
Because, for example, what the evidence shows is that imminent --
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JUDGE WALKER
(stops him)
Im sorry--
JUDGE WALKER
Im just -- what was the witness who offered the testimony? What was it and so forth?
MR. COOPER
Yes, Your Honor.
Sociologist Kingsley Davis has described the universal societal interest in marriage.
Blackstone, Your Honor, said that there are two great relations in private life. First,
that of husband and wife --
JUDGE WALKER
I don't mean to be flip, but Blackstone didn't testify. Kingsley Davis didn't testify. What
testimony in this case supports the proposition?
MR. COOPER
But, Your Honor, you don't have to have evidence for this from these authorities. This is in
the cases themselves.
JUDGE WALKER
I don't have to have evidence?
MR. COOPER
You don't have to have evidence of this point if one court after another --
(composes himself)
Your Honor, most courts, most of the courts, at least two-thirds, Your Honor, or just
approximately, anyway, two-thirds of all the judges who have looked at the issue that is
before you now have upheld the traditional, or would have, or would have upheld the
traditional definition of marriage on this rationale, this rationale.
(tries to grandstand)
And the plaintiffs say, there is no way to understand why anyone would support
Proposition 8 except through some irrational and dark motivation, some animus, some kind
of bigotry, Your Honor. And that is not just a slur on 7 million Californians who
supported Proposition 8. It's a slur on 70 of 108 judges who have--
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JUDGE WALKER
Let me ask: If you have got 7 million Californians who took this position, 70 judges, as
you pointed out, and this long history that you have described, why in this case did you
present but one witness on this subject? One witness. And I think it fair to say that his
testimony was equivocal in some respects.
MR. COOPER is stunned. He freezes. Time freezes. The
courtroom dims.
A new light finds MR. BOIES, downstage left, speaking
out toward the PRESS (the audience).
MR. BOIES
The defense in this case started with a long list of witnesses, but you see, it's easy for the
people who want to deprive gays and lesbians of their rights to make all kinds of
statements in campaign literature or on TV where they can't be cross examined. But when
they have to come into court and defend those opinions under oath, well, in initial
depositions, their expert witnesses started having second thoughts. That included Dr.
William Tam, one of the very men who worked to put Proposition 8 on the ballot in the
first place.
The VIDEO SCREENS light up again. This time with a
video reenactment of DR. TAMs deposition. We hear
MR. BOIESs voice off screen.
MR. BOIES (V.O.)
What is your relationship to the Traditional Family Coalition?
DR. TAM.
I am the executive director of Traditional Family Coalition.
MR. BOIES (V.O.)
This is an e-mail that you wrote on May 15, 2008, correct?
DR. TAM
Yes.
MR. BOIES (V.O.)
And the last sentence of this says: "We can't lose the battle for Proposition 8, or God's
definition of marriage will be permanently erased in California." Was that your motivation
for participating with ProtectMarriage.com in promoting Proposition 8?
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DR. TAM
Uhm, the other reason is I think it's very important that our children won't grow up to
fantasize or think about, should I marry Jane or John when I grow up?
MR. BOIES (V.O.)
You then go on to say: "What will be next? On their agenda list is legalizing having sex
with children." And this was something that you were putting out in order to convince
people to vote for Proposition 8, correct?
DR. TAM
Uh-huh. Yes.
MR. BOIES (V.O.)
And the last sentence says: "If sexual orientation is characterized as a civil right, then so
would pedophilia, polygamy and incest." Do you agree with that, sir?
DR. TAM
Yes, I agree.
MR. BOIES (V.O.)
And that's what you were telling people in order to convince them to vote for Proposition
8, correct?
DR. TAM
Yes.
MR. BOIES (V.O.)
Let me go down to point four where you say that: "Countries that legalized same-sex
marriage saw alarming moral decline. You believe that after the Netherlands legalized
same-sex marriage, the Netherlands went on after that to legalize incest and polygamy?
Who told you that, sir?
DR. TAM
It's in the internet.
MR. BOIES (V.O.)
In the internet?
DR. TAM
Yeah.
MR. BOIES (V.O.)
And you just put it out there to convince voters to vote for Proposition 8?
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DR. TAM
Yes.
Silence. Then the VIDEO MONITORS go off.
MR. BOIES (still facing the audience) finishes his
interview with the PRESS.
MR. BOIES
After his deposition, Dr. Tam chose to avoid the subpoenas compelling him to appear in
court under oath. In effect, Dr. Tam went on the lam, refusing to testify. And after our
depositions of their potential witnesses were complete, only two -- two were still willing to
testify. Their only remaining expert on marriage was a Mr. Blankenhorn.
The lights shift to TESTIMONY, a spotlight focuses on
MR. BLANKENHORN as he walks from the defense
table to the witness stand. The CLERK approaches him.
CLERK
Raise you right hand, please.
MR. BLANKENHORN raises his right hand.
CLERK (CONTD)
Do you swear to tell the truth, the whole truth and nothing but the truth?
MR. BLANKENHORN
I do.
MR. COOPER
Mr. Blankenhorn, what is the primary purpose of marriage in human groups?
MR. BLANKENHORN
We're embodied as male and female. That's the basic division in the species. We -- we
reproduce sexually. In fact, the famous anthropologist, Claude Levi-Strauss, once
described marriage as a social institution with a biological foundation. He was saying that
across societies, that the man and the woman whose sexual union makes the child, that
those same two individuals are also the social and legal parents of the child. And there is
only one institution in the world that performs the task of bringing together the three
dimensions of parenthood: The biological, the social and the legal. That institution is -- is
marriage. Because we know how important this is for children.
MR. COOPER seems pleased as he takes his seat.
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JUDGE WALKER
Very well. Mr. Boies, you may cross-examine.
MR. BOIES slowly walks up the aisle toward MR.
BLANKENHORN.
MR. BOIES
Let me try to make this question as simple as I can. Have any of the scholars that you have
said you relied on said that permitting same-sex marriage will cause a reduction in
heterosexual marriage? That's "yes," "no," or "I don't know."
MR. BLANKENHORN
I know the answer. I cannot answer you accurately if the only words I'm allowed to choose
from is "yes" or "no." I can give you my answer very briefly in one sentence.
JUDGE WALKER
If you know the answer, why don't you share it with us?
MR. BLANKENHORN
I would be happy to, but he is only permitting me to give "yes" and "no," and I cannot do
that and be accurate.
JUDGE WALKER
He is giving you three choices, "yes," "no," "I don't know."
MR. BLANKENHORN
But I do know. I do know the answer.
JUDGE WALKER
Then is it "yes" or is it "no"?
MR. BLANKENHORN
Your Honor, I can answer the question, but I cannot give an accurate answer if the only
two choices I have are "yes" and "no." I -- if you give me a sentence, I can answer it. One
sentence is all I'm asking for.
JUDGE WALKER
All right. Let's take a sentence. One sentence.
MR. BLANKENHORN
Can you ask me the question again, please?
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MR. BOIES
Yes, yes. Have any of the scholars who you say you relied on asserted that they believe
permitting same-sex marriage will result in a reduction in the heterosexual marriage rate?
MR. BLANKENHORN
My answer is that I believe that some of the scholars I have cited have asserted that
permitting same-sex marriage would contribute to the deinstitutionalization of marriage,
one of the manifestations of which would be a lower marriage rate among heterosexuals,
but I do not have sure knowledge that in the exact form of words you are asking me for
they have made the direct assertion that permitting same-sex marriage would directly lower
the marriage rate among heterosexuals.
MR. BOIES
Mr. Blankenhorn --
MR. BLANKENHORN
That wasn't so long.
MR. BOIES
Questions and answers.
JUDGE WALKER
If I were to take that as an "I don't know" would that be fair?
MR. BLANKENHORN
With respect, Your Honor, I would disagree with you. I know exactly my answer to this
question, and I have just stated it. And I would be happy to restate it.
JUDGE WALKER
The record is clear on what you said.
MR. BLANKENHORN stays on the stand as the lights
shift back to the CLOSING ARGUMENTS.
MR. COOPER
(dismissive)
Your Honor -- if you will -- I want to address the issue of whether or not redefining the
traditional understanding of marriage presents any basis for concern about the harm to
marriage that may result.
I think we have to begin with two propositions. The first one is that redefining the
institution will change the institution.
I think Mr. Blankenhorn really summed it up quite well.
Lights come back up on MR. BLANKENHORNs trial
testimony.
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MR. BLANKENHORN
It's impossible to be completely sure about a prediction of future events. But I do have a
great deal of confidence in the likelihood of the weakening of marriage through the process
of deinstitutionalization. If you change the definition of the thing, it's hard to imagine how it
could have no impact on the thing. So while I don't think anyone here can say that they
know with absolute certainty that this will happen, I sincerely believe that this is the most --
a likely result of adopting same-sex marriage.
Again, MR. COOPER seems satisfied.
MR. BOIES cross-examines.
MR. BOIES
And when you say based on the scholars that have studied this, that's because you're
simply repeating the things that these scholars say? You're just a transmitter of the
findings of these scholars, correct?
MR. BLANKENHORN
Well, you're putting words in my mouth now.
MR. BOIES
No, sir.
MR. BLANKENHORN
Yes, sir. I was simply trying to report the view of some scholars that I was basing my
arguments on. I'm saying there are scholars, respected scholars, who have made this
argument based on ethnographic research. And I've read them. And that's the basis for my
assertion. That's all.
MR. BOIES
Your Honor, could I ask that the witness be instructed to listen to the question, answer my
question and not make a statement that is not responsive to the question, even if he believes
it's important.
MR. BLANKENHORN
I don't need such instruction. That's what -- my intention is to do exactly that.
JUDGE WALKER
Mr. Blankenhorn, one of the instructions that the court gives to the jury is to consider the
witness's background, training, and all of the other evidence. That other evidence includes
the demeanor of the witnesses. So I would urge you to pay close attention to Mr. Boies's
questions and to answer them directly. Succinctly.
MR. BLANKENHORN
Yes, sir, I will.
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MR. BOIES
I'm really just addressing whether I was putting words in your mouth. And if you look at
page 300, lines 7 through 12, you said that you are basing your analysis on the work of
highly-regarded scholars. And then you say --
MR. BLANKENHORN
Oh, a gotcha moment. I used the word "I'm a transmitter of findings of eminent scholars."
Gotcha. Okay.
MR. BOIES
That's not a gotcha. I'm just trying to --
MR. BLANKENHORN
I said "transmitter" seven months ago in a deposition.
MR. BOIES
And what you meant there was that you weren't making these conclusions on your own.
You were simply repeating what these scholars had said. Is that correct?
MR. BLANKENHORN
If I may say it in my own words?
MR. BOIES
Well --
MR. BLANKENHORN
I was basing --
MR. BOIES
Let me look at your own words on page 300: "I'm simply repeating things that they say. I
can assure you, these are not my own conclusions. I'm -- I'm a transmitter here of findings
of these eminent scholars." Did you give that testimony at your deposition?
MR. BLANKENHORN
(a beat, then defeated)
That's what I said at the deposition.
MR. BLANKENHORN slumps in his chair as lights
come down on the witness stand and back up on the
CLOSING ARGUMENTS.
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MR. COOPER
(adamant, reeling)
Your Honor, you will not find anywhere in the pages of history, nowhere, any suggestion
that the traditional definition of marriage, across cultures, across time had anything
whatever to do with homosexuality! Had nothing to do with it!
JUDGE WALKER
You heard Mr. Olson this morning recount the background of the Loving decision by the
Supreme Court in 1967. And up to that time numerous states had laws on the books which
prohibited interracial marriage.
You recall the rationale that was used by the courts was that the mixing of the races
would have serious corrosive effects on society.
MR. COOPER
Your Honor, those racist, racist sentiments and policies had no foundation in the historical
purpose of marriage and, in fact -- they actually made people have illegitimate children,
illegitimate natural children, which, again was...
As the Eighth Circuit said, only opposite-sex couples can procreate naturally and,
therefore--
JUDGE WALKER
But you dont draw any distinction between the state's interest where an opposite-sex
couple have had to require some form of intervention in order to produce children.
MR. COOPER
Your Honor, not -- they are not quite the same, no.
JUDGE WALKER
Well, then, what's the difference?
MR. COOPER
I really think the state's main concern in regulating marriage, in seeking to channel
naturally procreative sexual conduct into stable and enduring unions is -- to minimize
what I would call irresponsible procreation.
A beat. KRIS puts an arm around ELLIOTT.
MR. COOPER (CONTD)
It's not a good term, but I can't think of a more serviceable one. And that is, procreation that
isn't bound by social norms and that often leads to children being raised by one parent or
the other or sometimes neither parent.
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JUDGE WALKER
And my point was that there are a number of heterosexual couples who do not naturally
procreate, who require the intervention of some third party or some medical assistance of
some kind.
Why don't those same values you have described apply to lesbian couples and gay
couples? Coming together, supporting one another, providing love, comfort and support
for one another, why don't all of those considerations apply just as much to the plaintiffs
here as they apply to John and Jane Doe.
MR. COOPER
Your Honor -- Your Honor, I want to conclude this piece of my argument by calling the
court's attention to a case in which the Eleventh Circuit upheld a Florida statute that
prohibited gay adoptions.
Taking all of this information into account, the legislature could rationally conclude
that a family environment with married opposite-sex parents remains the optimum social
structure in which to bear children; and that the raising of children by same-sex couples
presents an alternative structure for child-rearing that has not yet proved itself to be as
optimal as the biologically-based marriage norm.
JUDGE WALKER
I want to ask you something. Why should Mr. Blankenhorn's testimony be admitted?
Does he meet the Daubert standards?
MR. COOPER
His professional life for 20 years has been devoted to the study of marriage. He's written
two books on this subject matter --
JUDGE WALKER
Were they peer reviewed?
MR. COOPER
(stumbling)
I think the Ninth Circuit's standards for qualifying an expert are particularly liberal. So,
Your Honor... again... I didn't really come --
JUDGE WALKER *
All right -- *
MR. COOPER
(now stumbling badly)
-- here prepared to particularly reargue that -
- but -- I do believe... Would the court
entertain, well...
JUDGE WALKER
A break?
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MR. COOPER
Maybe five minutes?
JUDGE WALKER
Why don't we take a little more than that, and resume at 10 minutes after the hour.
Recess taken.
SANDY and KRIS congregate Downstage Left with the
TWINS.
ELLIOTT
What did that mean?
KRIS
What?
ELLIOTT
Irresponsible procreation or Illegitimate natural children. What was he talking about in
there?
SANDY
Theyre going to say whatever they have to. It doesnt mean its true -- or that its about
you.
SPENCER
So he was talking about us? Me and Elliott. Specifically. To our faces.
KRIS
Spencer--
ELLIOTT
Technically his back was to us, Spencer. He didnt even say it to our faces.
They wait for an answer.
KRIS softly turns and faces the audience, speaking almost
as if testifying; her inner thought.
KRIS
When I was 21 and she was 19, my sister was diagnosed with inoperable brain cancer.
The summer after I graduated from college she died. I was the only biological child my
parents had left.
Losing Karin changed us all.
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We all fumbled through the sadness for years after that. It really felt like we'd be
devastated and broken forever.
My 20s were so wrapped up in grieving and healing, but I eventually came out of it.
And when I did, I felt crystal clear that I wanted a family, I wanted to give birth, I wanted
to feel connected to my kids the way I had to my parents and Karin when she was alive. I
was unequivocal in my desire to have kids and bring the best parts of my sister, our family
and our future together.
The rest is pretty typical. I started the process of learning how to get pregnant. Yes,
lesbians have to learn how.
KRIS turns back to her family. To the twins:
KRIS (CONTD)
I went to a "considering parenthood" class for lesbians. We chose a donor. We started
inseminating. And after a year and a half, I decided to use fertility medication and that's
when it worked. I got pregnant the spring of 1994. I was 8 months pregnant on my 30th
birthday and bigger than our little house.
(choking up)
You boys were born at UCSF on October 30th by c-section. I will not tell you the O.R.
details, but you were not accidents. You were not irresponsible. You two are about the
most responsible, important, meaningful things I will ever do in my whole life and dont
you let anyone ever make you feel any different... You got it?
ELLIOTT *
Yes, Mom. *
SPENCER
Yes, Mom.
ELLIOTT
But we still dont want to eat out tonight.
KRIS
Fine. Tacos, takeout, whatever you want.
SANDY watches MR. BOIES head back into court.
SANDY
Its our turn. If you want to hear the rest, we should go back in.
ELLIOTT turns and goes back in. SPENCER follows.
KRIS and SANDY walk in and take their seats.
Lights come up on trial as MR. BOIES approaches MR.
BLANKENHORN on the stand.
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BLANKENHORN sits up straight, anxiety mounting.
MR. BOIES
Now, you believe that gays and lesbians today are raising children, correct?
MR. BLANKENHORN
Of course, yes.
MR. BOIES
And, in fact, hundreds of thousands of children are being raised by gay and lesbian
couples, correct?
MR. BLANKENHORN
I don't know how many.
MR. BOIES
Did you ever try to find out?
MR. BLANKENHORN
I did.
MR. BOIES
And were you able to make an approximation?
MR. BLANKENHORN
(nerves getting to him)
I was -- yes, sir, I was.
MR. BOIES
What was that approximation?
BLANKENHORN looks to the judge and then to the
floor.
MR. BLANKENHORN
I can't recall.
MR. BOIES
Can you recall approximately?
MR. BLANKENHORN
No, sir.
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MR. BOIES
Okay. And you recognize that in some cases gays and lesbians are raising a child that is the
biological child of one of the parents and in some cases they are raising adopted children,
correct?
MR. BLANKENHORN
Those would be two -- two of -- of course, they would be -- those would be examples of
children in gay and lesbian homes, yes.
MR. BOIES
And you believe that permitting gay and lesbian couples to marry would significantly
advantage the gays and lesbians themselves and the children that they are raising?
MR. BLANKENHORN
When you say "advantage," do you mean improve the well-being of?
MR. BOIES
Yes.
MR. BLANKENHORN pauses. Then his answer --
Quietly -- under oath.
MR. BLANKENHORN
My answer to your question is... that I believe that adopting same-sex marriage... would be
likely to improve the well-being of gay and lesbian households and their children.
MAGGIE GALLAGHER stands,
aghast.
MR. BOISE pauses. Silence in the Courtroom.
BLANKENHORN has contradicted his sides position.
He wont even look to the DEFENSE TABLE.
MR. BOIES
In fact, the studies show that all other things being equal, two adoptive parents raising a
child from birth will do as well as two biological parents raising a child from birth, correct?
MR. BLANKENHORN
No, sir, that's incorrect.
MR. BOIES
Well, sir --
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MR. BLANKENHORN
(insistent)
May I say another word on that, please?!
MR. BOIES
You will have an opportunity on redirect.
MR. BLANKENHORN
Okay... It was a clarifying thing... and actually supports something you just said.
A beat. MR. BOIES takes interest. Something in MR.
BLANKENHORNS demeanor has changed.
MR. BLANKENHORN (CONTD)
(sweating)
The studies show that adoptive parents, because of the rigorous screening process that they
undertake, actually on some outcomes -- outstrip the biological parents in terms of
providing protective care for their children.
MR. BOIES
Yes, I was going to come to that, and I appreciate your getting there.
MR. BLANKENHORN is turning. He wont make eye
contact with the DEFENSE.
MR. BOIES retrieves a BINDER and finds a page.
MR. BOIES
Now, in binder number one, we have a copy of your book, Future of Marriage.
(reads)
"After all, part of the reason why the principle is so revolutionary is that it can grow and
deepen over time. Groups that had long been considered effectively outside its moral
reach, African-Americans, women, people of certain colors or languages or religions, can
over time and often as a result of great struggle, enter into its protective sphere." And then
you get to the two sentences that I want to particularly direct your attention to. You say: "I
believe that today the principle of equal human dignity must apply to gay and lesbian
persons." Do you see that?
MR. BLANKENHORN
Yes, sir.
MR. BOIES
And the "I" there is you, correct?
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MR. BLANKENHORN
That's correct.
MR. BOIES
And you say: "In that sense insofar as we are a nation founded on this principle, we would
be more, emphasize more, American on the day we permitted same-sex marriage than we
were on the day before." -- And you wrote those words, did you not, sir?
MR. BLANKENHORN
I wrote those words.
MR. BOIES
And you believe them now, correct?
MR. BLANKENHORN
(a long beat, then)
Thats correct.
MR. BOIES
(considers, then)
Your Honor, I have no more questions.
As MR. BLANKENHORN steps down and slowly walks
back to his seat, lights come down on the witness stand.
MR. BOIES walks to the front of the stage and faces the
PRESS (the audience) as he has before.
MR. BOIES
When they come into court and they have to support and defend their opinions under oath
and cross-examination, those opinions just melt away. There simply wasn't any evidence.
There weren't any empirical studies. That's just made up. It's junk science. And it's easy to
say that on television, but the witness stand is a lonely place to lie. And when you come
into court, you can't do that. And that's what we did. We put fear and prejudice on trial.
Lights come down on MR. BOIES.
Lights come back up on MR. COOPER. He addresses the
judge, heated.
MR. COOPER
Your Honor, Mr. Blankenhorns testimony was utterly unnecessary for this proposition!
Utterly unnecessary for this proposition.
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JUDGE WALKER
This goes back to the you don't need any evidence point? -- Mr. Cooper, carry on.
MR. COOPER
The plaintiffs think that the consequences dominantly will be good consequences. But it's
not something that they can possibly prove.
And we would submit to you -- because I have heard this and read this more than
any three words that I have ever spoken: "I dont know. I don't know how many times I
had wished I could have those words back--
JUDGE WALKER
Well --
MR. COOPER
--because, Your Honor, whatever your question is, I damn sure know there's a risk. And
we want to see what happens in Massachusetts. We want to see what happens right here
and elsewhere.
JUDGE WALKER
But the "I don't know" or "We don't know where its going to lead" answer, is that enough
to impose upon some citizens a restriction that others do not suffer from?
MR. COOPER
We don't have to prove that redefining marriage would visit harm upon the interests that it
serves. We only have to prove that including same-sex couples would not serve those
interests.
The California Court of Appeal actually upheld the traditional definition of marriage.
And one of the points it made, Your Honor, really goes to the heart of the matter:
"It is the proper role of the legislature, not the court, to fashion laws that serve
competing public policies."
There is a debate about the morals, the practicalities, and the wisdom of this issue
that really goes to the nature of our culture. And the Constitution should allow that debate
to go forward among the people.
Thank you.
JUDGE WALKER
Thank you, Mr. Cooper.
MR. COOPER sits at the defense table. MR. OLSON
stands.
JUDGE WALKER (CONTD)
Mr. Olson,
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MR. OLSON
Your Honor, the argument that Mr. Cooper makes is essentially the same argument that
was made to the Loving Court, which, by the way, the Loving Court unanimously decided
to strike down.
And we stand here today thinking, how could that have been? In 1967, that's only 40
years ago, we would have punished as a felony in the State of Virginia the President's
mother and father if they had tried to travel there and be married.
Now, Mr. Cooper's argument is -- and I know why he would like to take back these
words -- "We don't know. We don't have to prove anything. We don't have any evidence."
Yet he was reading from articles written by various persons who did not come into
this courtroom and testify under oath and subject themselves to cross-examination by my
colleague, Mr. Boies. Some of them didn't come into court because they had been cross-
examined by Mr. Boies in their deposition.
Laughter in the courtroom.
MR. OLSON (CONTD)
But you do have to know. He does have to prove -- the Romer Court specifically says,
"Under the lowest standard of review, you have to prove that you have a legitimate interest
and that the object," Proposition 8 in this case, "advances that legitimate interest."
So how does preventing same-sex couples from getting married advance the interest
of procreation? What one single bit of evidence that they are a threat to the channeling
function? If you accept that California has that right in the first place. And I do not.
I believe, Your Honor, that there is a political tide turning. I think that people's eyes
are being opened. People are becoming more understanding and tolerant. The polls tell us
that. That isn't any secret.
But that does not justify a judge in a court to say, "I really need the polls to be just a
few points higher. I need someone to go out and take the temperature of the American
public before I can break this barrier and break down this discrimination."
Because if they change it here in the next election in California, we still have Utah.
We still have Missouri. We still have Montana. This case is going to be in a court. Some
judge is going to have to decide what we've asked you to decide.
And, you have to have a reason. And you have to have a reason that's real. Not
speculation. Not built on stereotypes. And not hypothetical. That's what the Supreme Court
decisions tell us.
And I submit, at the end of the day, "I don't know" and "I don't have to put any
evidence," with all due respect to Mr. Cooper, does not cut it.
It does not cut it when you are taking away the constitutional rights, basic human
rights and human decency from a large group of individuals.
You cannot say, "We are going to take away the constitutional right to liberty,
privacy, association, and sexual intimacy that we already tell you you have!"
That is not acceptable. It's not acceptable under our Constitution. And Mr.
Blankenhorn is absolutely right. The day that we end that, we will be more American.
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JUDGE WALKER (CONTD)
So, if there is nothing further, Mr. Cooper?
MR. COOPER
Nothing.
JUDGE WALKER
Very well. The matter is submitted.
As all exit the courtroom, KRIS, SANDY and the TWINS
are left center stage
ELLIOTT
Now what?
SANDY
I know, I know, its too late for soccer, but were going home. Well just pick up food on
our way and you can study for your tests.
SPENCER
And what, were just supposed to wait?
ELLIOTT
Yeah, how long do we have to wait?
KRIS
Im not sure, Elliott.
SPENCER
Why not? Youve got all these lawyers and people in suits running around. Somebody has
to know at least approximately how long we have to wait now. I mean, give me a break.
SANDY
Hey. Well fight these guys more another day. Youve got soccer practice tomorrow and
youve got three tests to study for.
SPENCER
Fine.
They ALL go... except ELLIOTT.
ELLIOTT stops KRIS with:
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ELLIOTT
Mom... Mom!
KRIS doubles back.
KRIS
What is it? What?
A beat. A private moment.
ELLIOTT
This whole thing was just ignorant. I hated being here.
KRIS
(a beat)
Right. Youre right. You shouldnt have to have been here. Its my fault. Im sorry, Elliott.
I am. Lets just get out of here, okay?
ELLIOTT
No. I just -- I just remember when you were up there, and looking around and seeing
people around me crying, and not even realizing it myself but I was crying too. I mean, my
mom was up there -- and fighting for us, and -- Im glad I heard it. I am. I just hate that we
HAD to. Thats all. Im proud of you, I guess thats what I meant to say. I mean I love
you, Mom.
KRIS
Well I love you too, Elliott.
KRIS holds him, keeping the moment as small and private
as he wanted it.
As the stage empties, we again hear the BROADCAST
JOURNALISTS voice.
BROADCAST JOURNALIST (V.O.)
On August 4th, 2010 Federal Judge Walker ruled unequivocally that California's gay
marriage ban, Proposition 8, is unconstitutional and on February 7th, 2012, the Ninth
Circuit Court of Appeals affirmed that decision.
It was a momentous victory for gay rights supporters, but it was not the end of the
fight, it was the beginning of what promises to be a longer struggle, one destined for this
countrys highest court.
Judge Walkers decision was stayed pending decisions by higher courts. So tonight,
like millions of other Americans, Jeff Zarrillo and Paul Katami, Sandy Stier and Kris Perry
still cannot be legally wed -- their families still unrecognized and unprotected in the country
they love.
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Along the apron, FOUR POOLS OF LIGHT, one for
each PLAINTIFF. They each step into their light, their
RIGHT HANDS RAISED for the duration.
KRIS
I swear to tell the truth, the whole truth, and nothing but the truth--
SANDY
The first time somebody said to me, "Are you married," and I said "Yes," I would think,
"That feels good and honest and true." I would feel less like I had to protect my kids or
worry that they feel any shame or sense of not belonging.
PAUL
I shouldn't have to feel ashamed. Being gay doesn't make me any less American. It doesn't
change my patriotism. It doesn't change the fact that I pay my taxes and I own a home, and
I want to start a family.
JEFFREY
I would be able to stand alongside my parents and my brother and his wife, to be able to
stand there as one family who have all had the opportunity of being married; and the pride
that one feels when that happens.
KRIS
If Prop 8 were undone, and kids like me growing up in Bakersfield right now could never
know what this felt like, their entire lives would be on a higher arc. They would live with a
higher sense of themselves that would improve the quality of their entire life.
SANDY
And that is what I hope can be the outcome of this case. I hope for something for Kris and
I, but other people, over time, would benefit in such an even more profound, life-changing
way... Thats what I hope for.
Lights fade.
End of Play.
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